Summary
reopening suppression hearing to allow defendant to make use of Rosario material
Summary of this case from Mayo v. HendersonOpinion
March 26, 1981
Appeal from judgment, Supreme Court, New York County, rendered March 12, 1980, convicting defendant, on jury verdict, of criminal possession of a weapon in the third degree, and sentencing him thereon as a second felony offender, is held in abeyance pending decision on a reopened hearing with respect to the suppression of physical evidence, and the matter is remanded to Allan Myers, J., for the purpose of reopening the suppression hearing as to physical evidence, and permitting defendant to make appropriate use of the District Attorney's notes, of which a copy is included at pages 262 and 263 of defendant-appellant's appendix in this court. In rendering his decision denying the suppression of physical evidence, the Hearing Judge said that this was "a close case", "maybe the scales are evenly tipped", but that he would not reject the testimony of the three police officers with no showing of why the police officers should have picked on this defendant. During the hearing on suppression of physical evidence, the District Attorney, on request for Rosario material (People v. Rosario, 9 N.Y.2d 286), turned over various such material to defendant's attorney. However, by oversight, the District Attorney failed to turn over during that hearing notes of an interview with Detective Walton, one of the arresting officers. Such material was turned over to the defense during the trial and not used at the trial. It is at least arguable that some of the material contained in these notes is inconsistent with the testimony at the suppression hearing. Defendant was entitled to this material for appropriate use at least for cross-examination of Detective Walton. (See People v Consolazio, 40 N.Y.2d 446, 453; People v. Mattiace Inds., 52 N.Y.2d 739; People v. Malinsky, 15 N.Y.2d 86, 90.) Accordingly, we remand the matter and direct the reopening of the hearing with respect to the suppression of the physical evidence to enable defendant to make appropriate use of these notes.
Concur — Sullivan, J.P., Ross, Markewich, Silverman and Fein, JJ.